Citation Nr: 9825295
Decision Date: 08/24/98 Archive Date: 07/27/01
DOCKET NO. 94-34 791 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an increased rating for cervical spine
disability, currently rated as 20 percent disabling.
2. Entitlement to an increased rating for post-concussion
syndrome with headaches and intermittent tinnitus ("post-
concussion syndrome"), currently rated as 10 percent
disabling.
3. Entitlement to an increased (compensable) rating for
surgical scar on the chest.
4. Entitlement to service connection for right shoulder
disability.
5. Whether new and material evidence has been submitted to
reopen a claim for service connection for spondylolisthesis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael P. Vander Meer, Counsel
INTRODUCTION
The veteran served on active duty from July 1988 to August
1991.
This case is before the Board of Veterans' Appeals (Board) on
appeal from rating decisions, the earliest of which was
entered in October 1991, of the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A
hearing was held before a hearing officer at the RO in April
1997.
The first four issues listed on the title page will be
addressed in the decision below. The final issue listed on
the title page will be addressed in a remand appearing at the
end of the decision.
CONTENTIONS OF APPELLANT ON APPEAL
Concerning his claim for an increased rating for cervical
spine disability, the veteran complains of experiencing upper
back pain and avers that motion in his cervical spine is
restricted. He also indicates that he experiences stiffness
in his cervical spine and that his cervical spine disability
is somewhat more problematic during cold weather.
Regarding his claim for an increased rating for post-
concussion syndrome with headaches and intermittent tinnitus,
he complains of being forgetful and also indicates that he
experiences some anxiety. He also avers that he experiences
headaches on a weekly basis.
With respect to his claim for an increased rating for
surgical scar on the chest, he contends, in essence, that the
scar is more severely disabling than currently evaluated.
Concerning his claim for service connection for right
shoulder disability, he asserts that his right shoulder is
dislocated as a result of trauma sustained in a vehicular
accident in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against increased ratings for, in each instance,
cervical spine disability, post-concussion syndrome and a
surgical scar on the chest, as well as for service connection
for right shoulder disability.
FINDINGS OF FACT
1. Current manifestations of the veteran's service-connected
cervical spine disability include complaint of experiencing
upper back pain; cervical flexion, extension and rotation
was, in each instance, unrestricted on VA examination in
December 1997.
2. Current manifestations of the veteran's service-connected
post-concussion syndrome include complaint of anxiety
symptoms, without ascertained memory impairment or
depression; overall impairment attributable to post-
concussion syndrome is not more than mild.
3. The veteran's surgical scar on the chest is not
productive of functional limitation of any affected part, nor
is it ulcerated or painful.
4. Dislocation referable to the right shoulder was not
present in service and is not shown to be otherwise
attributable to service; right shoulder arthritis was first
shown more than one year following the veteran's separation
from service.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 20 percent for
cervical spine disability have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45 and
Part 4, Diagnostic Codes 5290-5010 (1997).
2. The criteria for a rating in excess of 10 percent for
post-concussion syndrome with headaches and tinnitus have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §
4.7 (1997) and Part 4, Diagnostic Code 9304 (1995); 61 Fed.
Reg. 52, 702 (1996).
3. The criteria for an increased rating for a surgical scar
on the chest have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.7, 4.31 and Part 4, Diagnostic
Code 7805 (1997).
4. Dislocation of the right shoulder was not incurred in or
aggravated by service, nor may arthritis of the right
shoulder be presumed to have been incurred therein.
38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board finds that the first four issues listed on the
title page are, in each instance, well grounded within the
meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds
that these claims are plausible. The Board is also satisfied
that all relevant facts have been properly developed, and
that no further assistance to the veteran is required to
comply with 38 U.S.C.A. § 5107(a).
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1997). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1997).
Service connection is in effect for degenerative joint
disease, cervical spine, with moderate limitation of motion
and history of a C6-7 compression fracture, for which the RO
has assigned a 20 percent rating under the provisions of
Diagnostic Codes 5290-5010 of the Rating Schedule; for post-
concussion syndrome with headaches and intermittent tinnitus,
rated as 10 percent disabling under Diagnostic Code 9304; and
for status-post hemothorax/thoracostomy with residual scar,
rated as noncompensable under Diagnostic Code 7805.
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42
(1997), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991),
the Board has reviewed the service medical records and all
other evidence of record pertaining to the history of each
disability for which entitlement to an increased rating is
asserted. The Board has found nothing in the historical
record which would lead it to conclude that the current
evidence of record is not adequate for rating purposes.
Moreover, the Board is of the opinion that this case presents
no evidentiary considerations which would warrant an
exposition of the remote clinical histories and findings
pertaining to these disabilities.
I. Increased Rating, Cervical Spine Disability
Pursuant to Diagnostic Codes 5290-5010, the evaluation of the
veteran's cervical spine disability turns on the degree to
which motion in such spinal segment is limited. 38 C.F.R.
Part 4, Diagnostic Codes 5290, 5010. In accordance with
Diagnostic Code 5290, "moderate" limitation of motion of
the cervical segment of the spine warrants a 20 percent
rating; if the limitation of motion is "severe", a 30
percent rating is warranted.
Concerning his claim for an increased rating for cervical
spine disability, the veteran complains of experiencing upper
back pain and avers that motion in his cervical spine is
restricted. He also indicates that he experiences stiffness
in his cervical spine and that his cervical spine disability
is somewhat more problematic during cold weather. In this
regard, an October 1994 report from a non-VA health care
provider, Douglas E. Bouck, Sr., D.C., reflects that, when
the veteran was examined in October 1994, he exhibited
cervical extension and flexion to 30 and 40 degrees,
respectively, versus what was designated as "normal" motion
in these excursions to 45 and 55 degrees, respectively.
Thereafter, when examined in December 1994 by another non-VA
health care provider, Ronald Hertel, M.D., the related
examination report, which was apparently received at the RO
in 1996, reflects that the veteran exhibited cervical
flexion, extension and rotation which was "full" in each
excursion. Most recently, when examined by VA in December
1997, the veteran exhibited cervical flexion, extension and
rotation to 55, 60 and 35 degrees, respectively, with the
demonstrated motion in each excursion being described by the
VA examiner as "normal".
In considering the veteran's claim for an increased rating
for his service-connected cervical spine disability, the
Board acknowledges his above-stated contentions and does not
question his sincerity in lodging these assertions. However,
the Board is of the view, following its review of the
pertinent evidentiary record, that an increased rating for
his service-connected cervical spine disability is not in
order. In reaching such conclusion, the Board observes at
the outset that the restriction in cervical motion shown by
the veteran on the occasion of his examination under non-VA
auspices in October 1994 may have been representative of
'moderate' overall limitation thereof (lacking 15 degrees
from full motion, for both flexion and extension, in
accordance with the motion parameter cited by Dr. Bouck).
However, the above-cited cervical motion findings obtaining
in conjunction with the December 1994 examination by Dr.
Hertel as well as on the occasion of the veteran's
examination by VA in December 1997 were, on each examination,
representative of motion which was explicitly designated as
being unrestricted. Indeed, it bears emphasis that the
cervical flexion and extension exhibited by the veteran on
the latter examination (to 55 and 60 degrees, respectively)
equals or exceeds, in each instance, the degrees of motion
regarded as being representative of full motion even in
accordance with the unrestricted motion parameter employed by
Dr. Bouck in October 1994. Given the foregoing analysis,
then, and in the absence of any evidence even probative of
the requisite "severe" limitation of cervical motion
necessary for consideration of a 30 percent rating under
Diagnostic Code 5290, the Board is readily persuaded that an
increased rating for the veteran's service-connected cervical
spine disability is not in order.
In reaching the foregoing determination, the Board has
considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, as
pertinent to factors, traceable to service-connected cervical
spine disability, including general functional loss, weakened
movement and excess fatigability. The Board has also been
attentive for indication of loss of functional ability,
within the purview of 38 C.F.R. § 4.40, specifically
traceable to pain on use. See DeLuca v. Brown, 8 Vet. App.
202 (1995). However, the Board finds it noteworthy that, in
conjunction with his examination by VA in December 1997, the
examiner specifically indicated that the veteran was free of
spinal "weakness....fatigability or impairment of endurance."
The foregoing consideration, in the Board's view, militates
persuasively against the existence of sufficient disablement,
relative to the cervical spine, as to warrant the assignment
of a higher disability rating predicated on either 38 C.F.R.
§ 4.40 or 38 C.F.R. § 4.45.
The Board has also given consideration to the provisions of
38 C.F.R. § 4.7, which provide that, where there is a
question as to which of two evaluations should be assigned,
the higher rating will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. However, the record does not show that the actual
manifestations of service-connected disablement, relative to
the cervical spine, more closely approximate those required
for a 30 percent rating than they do the disability rating
currently assigned. Accordingly, the Board is unable to
identify a reasonable basis for a grant of this aspect of the
benefit sought on appeal. 38 U.S.C.A. §§ 1155, 5107;
38 C.F.R. §§ 4.7, 4.40, 4.45 and Part 4, Diagnostic Codes
5290-5010.
II. Increased Rating, Post-Concussion Syndrome
Pursuant to Diagnostic Code 9304, the evaluation of the
veteran's service-connected post-concussion syndrome turns on
the severity of his overall social and industrial impairment.
A 10 percent rating is warranted where such impairment is
"mild"; if such impairment is of "definite" severity, a 30
percent rating is warranted.
In Hood v. Brown, 4 Vet. App. 301 (1993), the United States
Court of Veterans Appeals stated that the term "definite" in
38 C.F.R. § 4.132 was "qualitative" in character, whereas the
other terms were "quantitative" in character, and invited the
Board to "construe" the term "definite" in a manner that
would quantify the degree of impairment for purposes of
meeting the statutory requirement that the Board articulate
"reasons or bases" for its decision. 38 U.S.C.A.
§ 7104(d)(1) (West 1991).
In a precedent opinion, dated November 9, 1993, the General
Counsel of the VA concluded that "definite" is to be
construed as "distinct, unambiguous, and moderately large in
degree." It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board
is bound by this interpretation of the term "definite." With
these considerations in mind, the Board will address the
merits of the claim at issue.
In addition, effective November 7, 1996, VA has revised the
criteria for diagnosing and evaluating psychiatric
disabilities. See 61 Fed. Reg. 52, 695 (1996). Pursuant to
Diagnostic Code 9304 under the revised criteria, a 10 percent
rating is warranted for occupational and social impairment
due to mild or transient symptoms which decrease work
efficiency and ability to perform occupational tasks only
during periods of significant stress, or; symptoms controlled
by continuous medication. A 30 percent rating is warranted
for occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, or recent events). See 61 Fed.
Reg. 52, 702 (1996).
Regarding his claim for an increased rating for post-
concussion syndrome with headaches and intermittent tinnitus,
the veteran complains of being forgetful and also indicates
that he experiences some anxiety. He also avers that he
experiences headaches on a weekly basis. In this regard,
when he was examined by VA in June 1996, the veteran alluded
to experiencing anxiety symptoms unrelated to situational
stressors, though he denied experiencing any "depressive
symptoms". His tinnitus was described as being
"intermittent" in frequency. He also complained of
experiencing forgetfulness and headaches. On mental status
examination, cognitive testing revealed no recent or remote
memory deficit; judgment was apparently intact, and insight
was described as being "full". Most recently, when
examined by VA in December 1997, the veteran indicated
experiencing headaches several times per week, though the
episodes were neither preceded by aura nor accompanied by
motion sickness. He also indicated that his headaches were
not disruptive of his sleep. Objective findings included
speech which was described as being "natural".
In considering the veteran's claim for an increased rating
for his service-connected post-concussion syndrome, the Board
is of the opinion, in light of the reasoning advanced
hereinbelow, that his 10 percent rating, at least in
accordance with the above-stated criteria which remained in
effect until November 7, 1996, is fully appropriate. In
reaching such conclusion, the Board is constrained to point
out that the veteran neither contends, nor does the evidence
reflect, that his post-concussion syndrome is productive of
any social impairment. Further, the veteran neither
contends, nor does the evidence reflect, that his post-
concussion syndrome is productive of any ascertained
industrial inadaptability. In this latter regard, the Board
is constrained to point out that although it recognizes that
the veteran is in receipt of Social Security Administration
benefits based on disability and that he has not been
employed since 1991, he indicated at his April 1997 personal
hearing that he discontinued working owing principally to
problems involving his "back". Given the foregoing
observation, and in the absence of any ascertained social or
industrial inadaptability traceable to post-concussion
syndrome, the Board is of the view that such disability is
productive of, at most, no more than mild overall impairment
and that, therefore, an increased rating for post-concussion
syndrome, pursuant to the provisions of Diagnostic Code 9304
in effect through November 6, 1996, is not in order.
The Board is, in addition, of the opinion that entitlement to
an increased rating for post-concussion syndrome is not
warranted pursuant to the revised above-addressed criteria
(for Diagnostic Code 9304) that became effective November 7,
1996. In reaching this conclusion, the Board would point out
that while factors such as a depressed mood would, if shown,
be characteristic of disability warranting a 30 percent
rating under the above-cited revised criteria, the veteran
denied experiencing any 'depressive symptoms' on the occasion
of his examination by VA in June 1996. The Board is
cognizant, to be sure, that the veteran indicated that he
experienced anxiety symptoms on the occasion of his June 1996
VA examination, which symptoms are characteristic of
disability warranting a 30 percent rating under the above-
cited revised criteria. At the same time, however,
militating against an award of a 30 percent rating, the Board
observes that there is no indication that the veteran's sleep
is problematic (which, if shown, is characteristic of
disability warranting such increased evaluation) and, in
addition, the veteran was free of any ascertained memory
impairment on the occasion of his June 1996 VA examination
(which, however, if present, would be an indicia of pertinent
disablement warranting a 30 percent rating). Given the
foregoing observations, then, the Board is persuaded that,
under the above-cited revised criteria that became effective
on November 7, 1996, a rating in excess of the 10 percent for
the veteran's service-connected post-concussion syndrome is
not in order. 61 Fed. Reg. 52, 702 (1996).
The Board has also given consideration, relative to each
basis on which entitlement to an increased rating for post-
concussion syndrome has been considered above, to the above-
stated provisions of 38 C.F.R. § 4.7. However, the record
does not show that the actual manifestations of the veteran's
service-connected post-concussion syndrome, relative to
either promulgation of the operative criteria considered
above, more closely approximate those required for a 30
percent rating than they do the disability rating currently
assigned. Accordingly, the Board is unable to identify a
reasonable basis for a grant of this aspect of the benefit
sought on appeal.
Finally, while the Board recognizes that headaches are an
adjudicated aspect of the veteran's service-connected post-
concussion syndrome, the veteran indicated to the VA examiner
in December 1997 that his headaches were apparently of a
wholly non-incapacitating character (i.e., not preceded by
aura, unaccompanied by motion sickness, and not disruptive of
sleep), which consideration, notwithstanding the frequency
with which the veteran experiences headaches, precludes any
notion of awarding a disability rating in excess of 10
percent in accordance with the provisions of 38 C.F.R. Part
4, Diagnostic Code 8100 (1997). In addition, while tinnitus
is also an adjudicated aspect of the veteran's service-
connected post-concussion syndrome, the Board would point out
that the maximum schedular evaluation allowable therefor is
10 percent for constant tinnitus under 38 C.F.R. Part 4,
Diagnostic Code 6260 (1997), for which the veteran would not
qualify in any event, inasmuch as his tinnitus was noted to
be of only 'intermittent' frequency on the occasion of his
examination by VA in June 1996. 38 U.S.C.A. §§ 1155, 5107;
38 C.F.R. § 4.7 and Part 4, Diagnostic Code 9304 (1995); 61
Fed. Reg. 52, 702 (1996).
III. Increased Rating, Surgical Scar on Chest
Pursuant to Diagnostic Code 7805, the veteran's post-
operative scar on the chest is rated on the basis of
limitation of any affected part. In accordance with
Diagnostic Codes 7803 and 7804, a 10 percent evaluation is
warranted for a scar which is poorly nourished with repeated
ulceration or tender and painful on objective demonstration,
respectively. However, pursuant to 38 C.F.R. § 4.31, where
the minimum schedular evaluation requires residuals and the
schedule does not provide for a noncompensable rating, a
noncompensable rating will be assigned where the required
residuals are not shown.
With respect to his claim for an increased rating for
surgical scar on the chest, the veteran contends, in essence,
that the scar is more severely disabling than currently
evaluated. In this regard, when he was examined by VA in
November 1997, the veteran's chest scar was noted to be free
of tenderness, adherence or ulceration. Given the foregoing
findings, however, i.e., the absence of ulceration or
objective evidence of pain/tenderness, the minimum residual
disability necessary for a compensable rating under
Diagnostic Codes 7803 and 7804, respectively, is not shown.
Further, there is no evidence that the scar is productive of
functional limitation of any affected part, negating any
notion of assigning a compensable rating under the provisions
of Diagnostic Code 7805. Given the foregoing observations,
then, and in accordance with the above-stated provisions of
38 C.F.R. § 4.31, the veteran's present noncompensable rating
for his chest scar, even with consideration of the above-
cited provisions of 38 C.F.R. § 4.7, is found to be
appropriate. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7,
4.31 and Part 4, Diagnostic Code 7805.
IV. Service Connection, Right Shoulder Disability
Under the law, service connection may be granted for
disability incurred in or aggravated by service. 38 U.S.C.A.
§§ 1110, 1131.
Concerning his claim for service connection for right
shoulder disability, the veteran asserts that his right
shoulder is dislocated as a result of trauma sustained in a
vehicular accident in service. In this regard, service
medical records, to include those pertaining to the veteran's
involvement in a military vehicle accident in Saudi Arabia in
1991, are negative for any reference to a right shoulder
injury. More recently, a July 1993 statement from Richard J.
Rende, M.D., reflects that the veteran had a dislocated right
shoulder with arthritis ("degenerative changes"); the
physician further commented that such "injury was likely
missed" in conjunction with the treatment rendered the
veteran in the aftermath of his involvement in the 1991
inservice vehicular accident.
In considering the veteran's claim for service connection for
right shoulder disability, the Board is constrained to point
out that it regards the above-cited opinion by Dr. Rende
(which is the lone item of evidence of record probative of
present right shoulder disability of service origin), wherein
he relates the veteran's dislocated right shoulder to
service-incurred vehicular accident-related trauma, as being
untenable for a number of reasons. First of all, there is no
indication that Dr. Rende formed his opinion on any basis
other than the veteran's related history, and the United
States Court of Veterans Appeals has indicated that an
opinion rendered on such basis lacks materiality. See Elkins
v. Brown, 5 Vet. App. 474, 478 (1993). Further, there is no
indication that Dr. Rende, prior to rendering the above-cited
opinion, ever reviewed the veteran's service medical records,
a consideration which further militates against the
materiality of such opinion. See Reonal v. Brown, 5 Vet.
App. 458, 460 (1993). To be sure, the Board is cognizant
that in a claim for service connection and if the veteran
engaged in combat with the enemy, the adverse effect of not
having an official report of inservice injury can be overcome
by satisfactory lay or other evidence pursuant to 38 U.S.C.A.
§ 1154 (West 1991). See generally Smith v. Derwinski, 2 Vet.
App. 137, 139 (1992). However, inasmuch as extensive
clinical records bearing on the veteran's above-addressed
involvement in the vehicular accident in 1991 in Saudi Arabia
were prepared and since the veteran was apparently not
engaged in active combat at the time of the accident (the
hospitalization report reflects that he was "asleep" in the
rear of the vehicle when the accident, in January 1991,
occurred), the Board is readily persuaded that the pertinent
provisions of 38 U.S.C.A. § 1154, in the precise context of
this aspect of the appeal, are not for application. Finally,
while the July 1993 statement from Dr. Rende reflects that
pertinent X-ray examination (presumably performed on July 30,
1993) revealed arthritis of the right shoulder, such date
(i.e., July 1993) is more than one year after the veteran's
separation from service, precluding an award of service
connection for such pathology on a presumptive basis. See
38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309.
In light of the reasoning advanced above, then, bearing on
the circumstances incident to the opinion rendered by Dr.
Rende as well as the non-applicability of the provisions of
38 U.S.C.A. § 1154(b), the Board concludes that the
preponderance of the evidence is against service connection
for right shoulder disability, to specifically include
arthritis referable to such joint. 38 U.S.C.A. §§ 1110,
1112, 1131, 5107; 38 C.F.R. §§ 3.307, 3.309.
ORDER
An increased rating for cervical spine disability is denied.
An increased rating for post-concussion syndrome with
headaches and tinnitus is denied.
An increased rating for a surgical scar on the chest is
denied.
Service connection for right shoulder disability is denied.
REMAND
Concerning the veteran's claim for service connection for
spondylolisthesis, the record reflects that such benefit was
denied in an rating decision entered by the RO in October
1991. Following pertinent notification, a Notice of
Disagreement was not received from the veteran within the
following year, and thus such denial became final. See
38 U.S.C.A. § 7105 (West 1991). Thereafter, although a June
1995 rating decision dealt with the question of whether the
October 1991 rating denial of service connection for
spondylolisthesis involved clear and unmistakable error, the
veteran clarified, at his April 1997 hearing, that he was
attempting to reopen his claim for service connection for
spondylolisthesis on the basis of the submission of new and
material evidence. Inasmuch, however, as such claim has not,
as of yet, been adjudicated on such basis by the RO, the
Board is of the view that such adjudication by the RO must be
accomplished before a related appellate decision is prepared.
Further development to facilitate the same is, therefore,
specified below.
Accordingly, the case is REMANDED for the following:
1. After undertaking any indicated
development, the RO should formally
adjudicate the issue of whether new and
material evidence has been submitted to
reopen a claim for service connection for
spondylolisthesis, i.e., the final issue
listed on the title page.
2. If the remaining benefit sought on
appeal is not granted to the veteran's
satisfaction, or if he expresses
disagreement pertaining to any other
matter, both he and his representative
should be provided with an appropriate
Supplemental Statement of the Case. The
veteran should be provided appropriate
notice of the requirements to perfect an
appeal with respect to any issue(s)
addressed therein which does not appear
on the title page of this decision.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. In
taking this action, the Board implies no conclusion, either
legal or factual, as to the ultimate outcome warranted. No
action is required of the veteran until he is otherwise
notified.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1998), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Veterans Appeals. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100f(b) (1997).